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Christian E. v. Kendra E.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


October 8, 2009

IN RE CHRISTIAN E., A DEPENDENT CHILD UNDER THE AGE OF EIGHTEEN YEARS, ETC.,
v.
KENDRA E., RESPONDENT-APPELLANT, ADMINISTRATION FOR CHILDREN'S SERVICES, PETITIONER-RESPONDENT.

Order, Family Court, New York County (Sara P. Schechter, J.), entered on or about May 10, 2007, which denied respondent's CPLR 5015 motion to vacate a default finding made on November 13, 2006 that she had educationally neglected her child, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Friedman, Catterson, Renwick, Abdus-Salaam, JJ.

Family Court providently exercised its discretion in denying respondent's motion to vacate her default (see Matter of Jones, 128 AD2d 403, 404 [1987]). Respondent failed to demonstrate both a reasonable excuse for her failure to appear and a meritorious defense (see e.g. Matter of Crystal Antoinette C., 14 AD3d 436 [2005]; Matter of Derrick T., 261 AD2d 108, 109 [1999]). Her scheduling of a follow-up medical appointment on November 13, 2006, a day on which she had to appear in court, was not a reasonable excuse for her default, and her conclusory allegations do not constitute a meritorious defense (see e.g. Matter of Gloria Marie S., 55 AD3d 320, 321 [2008], lv dismissed 11 NY3d 909 [2009]; Jones, 128 AD2d at 404). Consequently, we do not reach her arguments as to the merits of the educational neglect finding, most of which, in any event, were unpreserved.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20091008

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